Xizmo Media Productions LLC v. City of New York, 1:21-cv-02160

Background

Plaintiff Xizmo Media Productions LLC is a Brooklyn aerial cinematography company that holds FAA remote pilot certification and multiple FAA waivers authorizing nighttime flight, Class B airspace operations, and flight over nonparticipants.
New York City Administrative Code § 10-126(c) (the “Avigation Law”) makes it unlawful to take off or land an aircraft within city limits except at places designated by the DOT or the Port Authority; the statute defines "aircraft" broadly to include drones.
Xizmo alleges NYPD repeatedly shut down its FAA‑authorized flights and that the City publicly declares drone flight illegal in NYC, effectively operating as a citywide drone ban.
Xizmo sued for declarations that the Avigation Law is preempted by federal law (field and conflict preemption) and that it violates the First Amendment by restricting aerial filmmaking; the City moved to dismiss under Rule 12(b)(6).
The district court denied the motion to dismiss, holding Xizmo plausibly alleged conflict preemption (though not field preemption) and plausibly alleged that UAV filmmaking is protected expressive conduct and that the Ordinance may fail intermediate scrutiny.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Field preemption: whether federal law occupies the field of UAV operation	FAA/ FMRA create pervasive federal scheme leaving no room for local regulation	City says FAA anticipated some state/local regulation; Avigation Law targets takeoffs/landings (land‑use) not flight rules	Denied for plaintiff: court finds FAA guidance contemplates local regulation, so field preemption not plausible on pleadings
Conflict preemption: whether Avigation Law conflicts with FAA regs and waivers	Avigation Law, combined with FAA line‑of‑sight rule and Class B restrictions, operates as an effective ban nullifying FAA authorizations	City says law only regulates takeoffs/landings and allows designated sites; not a ban	Allowed to proceed: court finds plausibly the local rule could functionally conflict with FAA objectives and render FAA waivers/certificates meaningless
First Amendment – protected activity: whether UAV filmmaking is expressive conduct	Filmmaking (including the act/medium) is protected; UAV use is integral to creating expressive works and thus protected	City contends Xizmo failed to allege a particularized message and merely flying drones is nonexpressive conduct	Held for plaintiff at pleading stage: court finds aerial cinematography plausibly protected and not easily severable from final expressive product
First Amendment – intermediate scrutiny/time/place/manner: whether the Avigation Law is narrowly tailored and leaves ample alternatives	Law is not narrowly tailored to concrete safety concerns and five alleged takeoff sites are not realistic/ample alternatives for Manhattan filming	City asserts public safety/security in dense airspace justifies restricting takeoff/landing sites and alternative aerial methods exist (helicopters, cranes, rooftops)	Denied dismissal: court finds plaintiff plausibly alleged the law is not narrowly tailored and alternatives may be inadequate; factual development required

Key Cases Cited

Arizona v. United States, 567 U.S. 387 (field preemption framework)
Singer v. City of Newton, 284 F. Supp. 3d 125 (local drone restrictions held preempted where they effectively banned drone use)
Ward v. Rock Against Racism, 491 U.S. 781 (time, place, manner intermediate scrutiny standard)
Turner Broad. Sys. v. FCC, 512 U.S. 622 (narrow tailoring and substantial government interest test)
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (films are First Amendment‑protected expression)
Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (First Amendment protects mediums beyond spoken/written words)
Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards; plausibility)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
Rumsfeld v. FAIR, 547 U.S. 47 (inherently expressive conduct analysis)
Fields v. City of Philadelphia, 862 F.3d 353 (protection for creation of recordings)
Mastrovincenzo v. City of New York, 435 F.3d 78 (application of intermediate scrutiny in content‑neutral regulation)